Food for thoughts

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► Full reference: M.-A. Frison-Roche, , F. Ancel, N. Roret, "Les juges vont être de plus en plus présents dans le droit de la compliance" ("Judges will be more and more involved in Compliance Law"), interview with Olivia Dufour, Actu-Juridique, 1st March 2023.

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💬read the interview (in French)

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► Presentation of the interview by the journal (in French) : "À l’instigation du professeur Marie-Anne Frison-Roche, l’École nationale de la magistrature (ENM) a proposé pour la première fois début février une formation en compliance à destination des magistrats et des avocats. François Ancel, conseiller la Cour de cassation, Nathalie Roret, avocate et directrice de l’ENM et Marie-Anne Frison-Roche plaident d’une seule voix pour le renforcement du rôle des acteurs judiciaires dans la compliance."

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► Questions asked (in French): 

• D’où est venue l’idée d’aborder ce droit en cours d’émergence qui semble encore très confidentiel ?

• En effet, on croit souvent savoir ce qu’est la compliance, en la confondant avec la conformité, pouvez-vous expliquer ce qui les distingue ?​​

• On constate, en lisant le programme de la formation, que toutes les branches du droit sont concernées par la compliance depuis le droit des sociétés jusqu’au pénal en passant par les contrats et la responsabilité. Pouvez-vous nous donner des exemples ?​

• Comment se redistribuent les rôles entre les avocats, les juges et les entreprises dans cette nouvelle configuration qu’est la compliance ?​

• En quoi est-ce important pour les magistrats d’appréhender ce nouvel univers ?​

• Ces transformations sont-elles cantonnées à la compliance ou peuvent-elles sortir de son champ ?​

• Par exemple qu’en est-il de la question très controversée du rôle de l’avocat à l’égard du juge ?​

• Avez-vous constaté lors de cette formation une amélioration du dialogue entre les différents acteurs ?​

• Cette formation va-t-elle être instituée de manière permanente dans la formation des magistrats et des avocats ? Une autre manifestation est-elle prévue ?

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► Référence complète : J.-L. Fourgoux, "Le DMA, nouveau droit ou renouveau des droits de la concurrence ?", CCC, n°3, mars 2023, dossier 5

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► Résumé de l'article (fait par l'auteur) : "La publication du règlement relatif aux marchés contestables et équitables dans le secteur du numérique dit « DMA » constitue une étape déterminante dans le contrôle des pratiques des grandes plateformes numériques. Le DMA notamment par son approche ex ante est une innovation importante qui contribue à l'apparition d'un nouveau droit autonome et complémentaire du droit de la concurrence. Ces innovations et la reprise de techniques propres au droit de la concurrence peuvent être l'acte de naissance d'un très grand droit de la concurrence dont la coordination avec les autres droits européens et nationaux sera cruciale.".

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🦉Cet article est accessible en texte intégral pour les personnes inscrites aux enseignements de la Professeure Marie-Anne Frison-Roche

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► Full reference: Conseil constitutionnel (French Constitutional Council), decision n°2022-1035, QPC, 10 February 2023, Société Sony interactive entertainment France et autre

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► Read the decision (in French)

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► Full reference: M.-A. Frison-Roche, "Les notaires "agents d'effectivité de la compliance"", interview with  Sarah Bertone, Solution Notaire Hebdo, 9 February 2023.

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💬read the interview (in French)

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► Presentation of the interview by the journal (in French): "Souvent envisagée comme un ensemble des processus visant à s’assurer du respect de certaines réglementations et/ou valeurs éthiques par les professionnels, la compliance est aujourd’hui encore mal appréhendée. Marie-Anne Frison-Roche, professeur de droit, spécialisée en droit de la régulation et de la compliance, nous explique en quoi le notariat trouve pourtant toute sa place dans cette démarche."

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► Questions asked (in French): 

• Quelle conception de la compliance doit-on adopter pour être efficace ? 

• En quoi ces organisations sont-elles clés ?

• Concrètement, puisque ces organisations anciennes se révèlent si adéquates, ont-elles besoin de s’adapter ?

• Ne faudrait-il pas que ces professions se modifient ?

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► Full Reference: M.-A. Frison-Roche, "Instaurer l'insécurité juridique comme principe, outil de prévention des crises systémiques catastrophiques totales" ("Establishing legal uncertainty as a principle and a tool for preventing total catastrophic systemic crises"), in G. Gerqueira, H. Fulchiron et N. Nord (eds.), Insécurité juridique : l'émergence d'une notion ?, Société de législation comparée, coll. "Colloques", vol. 53, 2023, pp. 153-167. 

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📝read the article (in French)

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🚧read the bilingual Working Papier which is the basis of the conference and this article

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🎤watch the conference of March 22, 2021 that took place in the Cour de cassation (French Court de cassation) and for which this reflection was globally led

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► English Summary of the article: "whatever it takes". In 2015, Mario Draghi used this formula to aim for the defence of the European currency, when the Euro was in danger of collapsing under the dance of the speculators who would be enriched by its collapse. Rarely has a formula been more violently political and more strongly prescriptive. It contributed to his being dubbed "Super Mario", as in the video game. The formula was used again in 2020 by the Président de la République Française (President of the French Republic) in the face of the financial turmoil caused by the health crisis that led to similar calculations. It goes beyond the mere "financial cost". With this formula, the President of the European Central Bank stated that the economic crisis in Europe was such that the institution would do everything in its power to put an end to it, without any limits; that all those who, by their behaviour, even supported by their legal prerogatives, in this case the speculators, because they were destroying the economic and financial system, would come up against this and would themselves be swept away by the Central Bank because the latter's mission, in that it is absolutely to safeguard the Euro itself, would prevail "quoi qu'il en coûte" ("whatever the cost"). At one point, the master stood up. If the royal position is the seated position, when he listens and judges, it is by rising that he shows his acceptance of also being the master, because he is in charge of more and will use everything to win.

More broadly, we might consider drawing up a positive concept of legal uncertainty (which is bound to please the Hegelians), increasing legal certainty: this would make it possible to associate a clearer legal regime with the hypotheses of legal uncertainty. Indeed, rather than sweeping Law under the carpet, which explains many of the tensions between the Conseil constitutionnel (French Constitutional Council) and the Conseil d'État (Council of State) on the one hand, and the legislator and the government on the other, concerning the "État d'urgence" ("State of emergency"), we could set out the conditions in which legal uncertainty makes it possible to set aside or limit rules.

The idea proposed is therefore that in "extraordinary situations", legal uncertainty would be a dimension, or even a principle which would be admissible. And developing this first point, it is proposed that the hypothesis of an "economic crisis" justifies a dimension, or even a principle of "legal uncertainty". But this first assertion needs to be tested. Is an economic crisis, a concept that needs to be defined, if it is to have such a major reversal effect, such an extraordinary 'situation'? Furthermore, to deal with this extraordinary situation constituted by an 'economic crisis', how much legal uncertainty would be legally acceptable, or even legally claimed? Could we even conceive of a reversal of principle that would bring applicable Law to an economic crisis under the aegis of legal uncertainty? In such a case, the question that then arises is to determine the conditions and criteria for emerging from the economic crisis, or even to determine the elements of perspective of an economic crisis, which could justify in advance the admission of an injection of legal uncertainty. Above all, Law has control over the future.

The economic crisis should therefore be legally defined as an exceptional situation, before stressing that Regulation and Compliance Law, because on the one hand we move from crisis to crisis and on the other hand the whole system aims to avoid and manage the future crisis in advance or to exclude it; this is particularly true of health and climate issues (the way the health crisis was managed was to 'decree' that the State should initiate an economic crisis), which means that legal insecurity is no longer seen as a distant exception, a failure to be combated, but as a lever that can be used to influence the future.

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► Full Reference: Ancel, F. & Frison-Roche, M.A., Droit de la compliance ("Compliance Law", French National School for the Judiciary (Ecole nationale de la magistrature - ENM), 

This teaching is given in French.

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► Presentation of the Teaching: The two-day session is designed for magistrates and practicing lawyers who are not necessarily specialized, to enable them, based on concrete cases, to understand the issues, objectives, and methods of compliance mechanisms in companies, including the increasing judicialization and the supranational dimension strengthen, modifying the office of the judge and the role of lawyers.

The analysis is made from the angle of Civil Law (contract, tort), Company Law, Labor Law and Criminal Law, but also governance, financial markets, regulatory, climate and digital issues.

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► Organisation of the Teaching: this teaching is open to all judicial members and lawyers. Enrollments are made at the French National School for the Judiciary.

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► Full Reference: M.-A. Frison-Roche, "Lignes de force de l'ouvrage La juridictionnalisation de la Compliance" ("Main lines of the book La juridictionnalisation de la compliance"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 1-28. 

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► This article constitutes the first part of the Introduction of the book; its access is free⤵️ 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done by the Journal of Regulation & Compliance): This free access article ⤵️explains firstly the general purpose of the book and secondly how the book is structured in 4 parts.

Then, thirdly and following the table of contents, this article takes up in a few lines each of the contributions.

This is how the "main lines" of the book La juridictionnalisation de la compliance ("The Juridictionnalisation of Compliance") become even clearer

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🔓read this article in full text (in French) ⤵️

► Full Reference: S. Schiller, "Un juge unique en cas de manquement international à des obligations de compliance ?" ("A single judge in the event of an international breach of compliance obligations?"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 453-464. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done by the author, translated by the Journal of Regulation & Compliance): Given the very international nature of the topic apprehended, the actors involved and therefore the compliance disputes, it is essential to know if a person can be implicated before several judges, attached to different states or even if he can be condemned by several jurisdictions. The answer is given by the non bis in idem principle, which is the subject of a abondant case law on the basis of Article 4 of Protocol n°7 of the ECHR, clearly inapplicable for jurisdictions emanating from different States.

To assess whether breaches of compliance obligations may be subject to multiple sanctions in different states, it will first be necessary to ascertain whether there is a textual basis to be invoked.

At European level, Article 50 of the Charter of Fundamental Rights now allows the principle of ne bis in idem to be invoked. Applicable to all areas of compliance, it provides very strong protection which covers not only sanctions, but also prosecutions. Like its effects, the scope of Article 50 is very broad. The procedures concerned are those which have a repressive nature, beyond those pronounced by criminal courts in the strict sense, which makes it possible to cover the convictions pronounced by one of the many regulatory authorities competent in matters of compliance.

Internationally, the situation is less clear. Article 14-7 of the International Covenant on Civil and Political Rights may be invoked, if several obstacles are overcome, including the decision of 2 November 1987 of the Human Rights Committee which restricted it to the internal framework, requiring a double conviction by the same State.

Even if these principles are applicable, two specificities of compliance situations risk hampering their application, the first related to the applicable procedural rules, in particular the rules of jurisdiction, the second related to the specificities of the situation.

The application of the non bis in idem rule is only formally accepted with regard to universal jurisdiction and personal jurisdiction, that is to say extraterritorial jurisdiction, which is only part of the jurisdiction. . The Cour de cassation (French Judiciary Supreme Court) confirmed this in the famous so-called “Oil for food” judgment of March 14, 2018. The refusal to recognize this principle as universal, regardless of the jurisdiction rule in question, deprives French companies of a defense. Moreover, the repression of breaches of compliance rules is more and more often resolved through transactional mechanisms. The latter will not always fall within the scope of European and international rules laying down the non bis in idem principle, for lack of being sometimes qualified as "final judgment" under the terms of Article 50 of the Charter of Fundamental Rights of the European Union and Article 14-7 of the International Covenant on Civil and Political Rights.

Breaches in terms of compliance are often based on multiple acts. This results from prescriptions the starting point of which is delayed at the last event and a facilitated jurisdiction for French courts when only one of the constitutive facts is found in France. In terms of compliance, the non bis in idem principle therefore generally does not protect companies and does not prevent them from being sued before the courts of two different countries for the same case. It nevertheless grants them another protection by obliging them to take into account foreign decisions in determining the amount of the penalty. The sanction against Airbus SE in the Judicial Convention of Public Interest (CJIP) of January 29, 2020 is a perfect illustration of this.

Breaches in terms of compliance are often based on multiple acts. This causes delays in the starting point of prescriptions, starting point delayed at the last event, and this facilitates judicial jurisdiction for French courts when only one of the constitutive facts is found in France. In terms of compliance, the non bis in idem principle therefore generally does not protect companies and does not prevent them from being sued before the courts of two different countries for the same case. It nevertheless grants them another protection by obliging them to take into account foreign decisions in determining the amount of the penalty. The sanction against Airbus SE in the Convention judiciaire d'intérêt public -CJIP (French Judicial Convention of Public Interest)  of January 29, 2020 is a perfect illustration of this.

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► Full Reference: E. Wennerström, "Quelques réflexions sur la Compliance et la Cour européenne des droits de l'homme" ("Some Reflections on Compliance and the European Court of Human Rights"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 479-489.

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done by the Journal of Regulation & Compliance): The development of the European Court of Human Rights case law, contributing to European integration, has incorporated the substantial concept of ​​"compliance" which goes beyond the idea of ​​legality with respect to which companies remain passive, and promotes legal orders as systems in interaction with another. 

The author develops the spirit and scope of Protocol 15 by which both the principle of subsidiarity and the margins of appreciation the signatory States are organized, mechanisms governed by the principle of proportionality. Subsidiarity means that the States are in the best position to design the most adequate application of the Convention, the close links between the States allowing its effective application. In addition, the new opinion procedure which allows a national court to have during a case the non-binding opinion of the ECHR ensures better compliance with the objectives of the Convention.

The case-law of the Court takes up this substantial requirement through its doctrine, in particular identified in the Bosphorus case, by stressing that the accession of a State to the European Union presumes its compliance when implementing EU law with the obligations arising from the ECHR, even if this presumption can be refuted if the protection is manifestly lacking, which was admitted in several cases, in particular concerning the right to an impartial tribunal in matters of economic regulation. The different legal orders are thus articulated. 

The author concludes that the European Court of Human Rights, like the Court of Justice of the Union, contributes to the construction of Compliance Law in Europe, from an Ex Ante perspective favoring opinions rather than Ex Post sanctions and creating, in particular through the Bosphorus doctrine, elements of security and confidence for European integration around common values.

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► Full Reference: C. Kessedjian, "L'arbitrage au service de la lutte contre la violation des droits de la personne humaine par les entreprises" ("Arbitration in the service of the fight against the violation of human rights by companies"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 295-302. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done par the author): By choosing the expression "Human Rights violations by Businesses", the Author is taking sides among the many possible titles for her article, that could portrait the field of law we are talking about here.  Often acronyms are used: RBC (responsible business conduct), CSR (corporate social responsibility), ESG (environment, social and governance), to name only the three main ones.

Her preference would be to use RBC by far, as CSR has been discredited by many NGOs and ESG has too much of a "financial" connotation.

In any case, this article deals with the attitude of enterprises that, in the conduct of their activities, cause damage to stakeholders, whether "internal" (employees, customers, partners, subcontractors, etc.) or external (local civil society, communities in which the activity takes place, the environment, etc.).

Legally, each of these cases may be characterized differently and generate the application of different procedural and substantive rules. When these disputes are submitted to arbitrators, many questions arise, the most delicate of which relate to the delimitation of the power of the arbitral tribunal, particularly if one starts from the idea that compliance aims at a proactive attitude on the part of enterprises with a clear preventive purpose.

The objective of prevention will lead to changes in the conduct of the arbitration that, for example, cannot remain confidential, confidentiality being an obstacle to the preventive effect of the decision rendered.

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► Full Reference: C. Granier, "Réflexions sur l'existence d'une jurisprudence des entreprises" ("Reflections on the existence of a "Compagnies' case law""), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 81-95. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done by the author): Because Compliance shakes up established frameworks, Compliance forces to look at certain concepts in a new light, which until then seemed to be well tamed. This is particularly the case with the notion of "Jurisprudence". Recent developments in Compliance indeed raise questions about the possible existence of "jurisprudence" (case law) that would be produced by companies during the implementation of compliance procedures.

At first glance, the concept of "business jurisprudence" may appear unnatural because case law is traditionally understood as the fruit of the office of the Judge and, more particularly, of the State Judge. However, the observation that the company can position itself as a Judge with regard to itself and others in the context of the implementation of Compliance legitimately raises the question of the possibility for the latter. to produce case law. The example of Facebook's supervisory board and the first decisions rendered by this body increases the legitimacy of this crucial question.

Thinking about the concept of "Jurisprudence of companies" implies to compare the process of emergence of the case law standard emanating from the Judge with the process of emergence of a "Jurisprudence" that would be produced by companies during their "jurisdictional functions". On the material level, an analogy between State case law and company case law seems conceivable. It then remains to overcome an obstacle of an organic nature: can an institution other than the judge be understood as producing case law?

In view of contemporary developments in Law and the practical interest that exists in designing business case law, it seems appropriate to adopt a broader view of case law, which is detached from the traditional organic criterion. It therefore seems that it is possible but above all that it is necessary to think about the concept of "business case law" in order to highlight a new facet of the normative power of companies in the context of compliance, in particular with a view to its supervision.

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► Full Reference: O. Douvreleur, "Compliance et juge du droit" ("Compliance and Judge ruling only on points of Law"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 465-471. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done by the Journal of Regulation & Compliance): Compliance maintains with the judge complex relations, and even more with the judge ruling only on points of Law  (in France, the Court de Cassation in the judicial order, the one who, in principle, does not know the facts that he leaves to the sovereign appreciation of the judges ruling on the substance of the disputes. At first glance, compliance is a technique internalised in companies and the place occupied by negotiated justice techniques leave little room for intervention by the judge ruling only on points of Law

However, his role is intended to develop, in particular with regard to the duty of vigilance or in the articulation between the different branches of Law when compliance meets Labor Law, or even in the adjustment between American Law and the other legal systems, especially French legal system. The way in which the principle of Proportionality will take place in Compliance Law is also a major issue for the judge ruling only on points of Law.

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► Full Reference: F. Ancel, "Le principe processuel de compliance, un nouveau principe directeur du procès ?" (The procedural principle of compliance, a new trial leading principle?), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 225-230. 

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📕read a general presentation of the book, La juridictionnalisation de la compliance, in which this article is published

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► Summary of the article (done by the Journal of Regulation & Compliance): Through this article, the author formulates a proposal: elevating the principle of compliance to the rank of leading principle of the trial. To support this, the author firstly emphasizes the convergence of the aims of compliance and the purpose of the trial. Indeed, emphasizing that Compliance Law does not oust either the State or the judge, as soon as compliance means that the person must keep their commitments and that the trial is also based on this principle that the parties must conform to the principles and to their own "speech", compliance thus becomes a trial leading principle.

In a second part of the article, the author illustrates his point in a very concrete way. First, the protocols of procedure which are drawn up by the courts and the bars are commitments which should justify a form of constraint which, if it should not have the same form and nature as that of the law, must all the same even have consequences when a party fails to do so. Secondly, relying on French case law which sanctions a party which had accepted the principle of an arbitration and then systematically hinders its implementation, the author suggests that under the principle of compliance can be grouped the notions for the instant scattered of loyalty, consistency (estoppel) and efficiency.

Thus, this "open practice" echoing the "open way" of a procedural principle of compliance brings out this one.

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► Full Reference: B. Silliman, "Secret professionnel et coopération : les leçons de procédure tirées de l’expérience américaine pour une application universelle" ("Privilege and cooperation, procedural lessons learned from the U.S for global application"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 231-234.  

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► English summary of the article (done by the Journal of Regulation & Compliance): The French legal system is evolving, organizing interaction between lawyers with regulators and prosecutors, especially in investigations about corruption or corporate misconduct, adopting U.S. negotiated resolutions such as the Convention judiciaire d'intérêt public, which encourages "collaboration" between them. 

The author describes the evolution of the U.S. DOJ doctrine and askes French to be inspired by the U.S. procedural experience, U.S. where this mechanism came from. Indeed, the DOJ released memoranda about what the "collaboration" means. At the end (2006 Memorandum), the DOJ has considered that the legal privilege must remain intact when the information is not only factual to maintain trust between prosecutors, regulators, and lawyers.

French authorities do not follow this way. The author regrets it and thinks they should adopt the same reasoning as the American authority on the secret professionnel of the avocat, especially when he intervenes in the company internal investigation.

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🦉This article is available in full text for those registered for Professor Marie-Anne Frison-Roche's courses

► Full Reference: J. Heymann, "La nature juridique de la "Cour suprême" de Facebook" ("The legal nature of Facebook's "Supreme court""), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 151-167. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► The summary below describes an article following the colloquium L'entreprise instituée Juge et Procureur d'elle-même par le Droit de la Compliance , co-organized by the Journal of Regulation & Compliance (JoRC) and the Faculté de Droit Lyon 3. This manifestation was designed under the scientific direction of Marie-Anne Frison-Roche and Jean-Christophe Roda and took place in Lyon on June 23, 2021.

In the book, the article will be published in Title I, devoted to: The Entreprise instituted Judge and Prosecutor of itself by Compliance Law.

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► Summary of the article (done by the author): Taking place in the general theme aiming at making “words and things coincide”, the article offers some thoughts on the “conditions of the discourse” – in the sense in which Foucault understood it in his Archéologie des sciences humaines – relating to the phenomenon of “jurisdictionalization” of Compliance.

            The thoughts are more specifically focusing on the nature of the so-called “Supreme Court” that Facebook instituted to hear appeals of decisions relating to content on the digital social networks that are Facebook and Instagram. Is this really a “Supreme Court”, designed in order to “judge” the Facebook Group?

            A careful examination of the Oversight Board – i.e. the so-called “Supreme Court” created by Facebook – reveals that the latter, in addition to its advisory mission (which consists of issuing policy advisory opinions on Facebook’s content policies), exercises some form of adjudicative function. This is essentially conceived in terms of compliance assessment, of the content published on the social networks Facebook or Instagram with the standards issued by these corporations on the one hand, of content enforcement decisions taken by Facebook with the Law on the other hand. The legal framework of reference is yet rather vague, although its substantial content seems to be per se evolutive, based on the geographical realm where the case to be reviewed is located. An adjudicative function can therefore be characterized, even if the Oversight Board can only claim for a limited one.

            The author can ultimately identify the Oversight Board as a preventive dispute settlement body, in the sense that it seems to aim at avoiding any referral to state courts and ruling before any court’s judgement can be delivered. Some questions are thus to be raised, relating with both legitimacy and authority of such a Board. But whatever the answers will be, the fact remains that the creation of the Oversight Board by a private law company already reveals all the liveliness of contemporary legal pluralism.

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► Full Reference: E. Silva-Romero and R. Legru, "Quelle place pour la Compliance dans l'arbitrage d'investissement ?" ("What place for Compliance in investment arbitration?"), in M.-A. Frison-Roche (dir.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 281-293. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► The summary below describes an article that follows an intervention in the scientific manifestation Compliance et Arbitrage, co-organised by the Journal of Regulation & Compliance (JoRC) and the University Panthéon-Assas (Paris II). This conference was designed by Marie-Anne Frison-Roche and Jean-Baptiste Racine, scientific co-directors, and took place in Paris II University on March 31, 2021. 

In the book, the article will be published in Title II, devoted to: Compliance et Arbitrage.

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► Summary of the article (done by the Journal of Regulation & Compliance): The authors emphasize the new and growing place of Compliance in International Arbitration, particularly in the requirement of respect for ethical values, since arbitrators can implement Ethics, sometimes lacking in international trade, or even must put their power only at the service of investors who respect the Rule of Law.

Thus, Compliance is deployed through the classic control by the arbitrators of the legality of the investment, which applies both to the establishment of the treaty itself and to the investor. In a more recent way, the arbitrator can control about an investment project a sort of "social license to operate" of the investor, concept related to the social responsibility of the companies, appeared for the protection of the peoples indigenous. Moreover, Compliance can justify a substantial assessment by the arbitrator of the effective respect of the human rights and the environment protection via an investment treaty, the State party remaining able to act for the effectiveness of these concerns.

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► Full Reference: S. Scemla and D. Paillot, "La difficile appréhension des droits de la défense par les autorités de contrôle en matière de compliance" ("The supervisory authorities face difficulties to apprehend the rights of the defence in Compliance matters"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 241-249.

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done by the authors): Since 2016, French companies subject to the provisions of the so-called “Sapin 2” Law must implement eight stringent anti-corruption measures, such as a risk mapping, a whistleblowing procedure or a third-party due diligence procedure.

To ensure their compliance with these obligations, the Sapin 2 law created the Agence française anticorruption - AFA (French Anti-Corruption Agency), which had been assigned three missions: firstly, to help any person prevent and detect corruption; secondly, to control the quality and effectiveness of the anti-corruption programs deployed by the companies; and thirdly, to sanction any breaches, through its Sanctions Committee.

As pointed out by the French Conseil d’Etat, the powers devolved to the administrations have multiplied and became stratified. While the Conseil d'Etat suggests to improve both the conduct and the effectiveness of administrative controls by harmonising their practices and simplifying their prerogatives, it is urgent to remedy the numerous procedural failures that undermine the rights of defence.

In fact, the AFA exercises various powers when undertaking its controls. Some of these powers are not provided for by the Law, and most of them infringe fundamental rights and freedoms among which the adversarial principle and the freedom not to self-incriminate. For instance, the AFA does not necessarily draft minutes of the interviews it conducts, thus depriving the interviewee of the possibility to challenge the statements reported by the AFA to the Sanctions Committee.

From a more structural point of view, the scope of the AFA's mission is extremely broad. The Law allows the AFA to request the communication of "any professional document or any useful information", without defining the notion of usefulness. Also, the AFA considers that the entity cannot benefit from the legal privilege that would cover their documents, and considers that an entity who voluntarily hands over a document, without expressing any reserves, waives its right to the benefit of its legal privilege.

Apart from the severe consequences that could arise if another proceedings was to be initiated by a foreign authority, the concept of "voluntary handover" does not faithfully reflect the reality. Indeed, the controlled entities only cooperate under the threat of being prosecuted on the basis of an obstruction to the control, which compels them to communicate documents even when facing the risk of contributing to their own incrimination.

These many procedural deficiencies encountered during AFA controls must therefore be reformed, as recommended by the Conseil d’Etat, so as to require the authorities to take into account the rights of the defence.

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► Full Reference: S. Merabet, "La vigilance, être juge et ne pas juger" ("Vigilance, to be a judge and not judging"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 199-209. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done by the author): Vigilance presents two diametrically opposed dangers. The company is caught in the crossfire. On the one hand, there is a risk that it exercises its role at a minimum, so that the obligations imposed on it are ineffective, thereby risking its own liability.   On the other hand, the danger is that the company oversteps its role and takes the place of the Judge. Does Vigilance always present the same dangers? Does it systematically involve the same role of the company? To be vigilant, is it to judge? The answer to these questions depends on the content of the obligations involved in Vigilance. However, these now seem very diverse.

How to distinguish between the various duties of Vigilance? A first approach could consist in considering a formal identification which leads to distinguish stricto sensu Vigilance, that which is envisaged by the French so-called "Sapin 2" law and identified as such, and the related obligations, such as for example the duty of moderation of companies on social networks, which without being baptized "duty of vigilance", nevertheless come close. The extension of Compliance obligations blurs the line between what exactly falls under Vigilance and what not. A more substantial approach should be taken to consider the degree of control exercised by the company. Understood in this way, it is possible to distinguish two categories: Negative Vigilance, which implies the identification of a risk, and Positive Vigilance, which even more supposes the neutralization of the risk. The first assumes a limited role for the company, while the second encourages it to act positively, even before an Authority has spoken. In this case, the role of the company is closer to that of the judge. That shows that all the obligations of vigilance cannot therefore be understood in a unitary manner.

As soon as the company is led - if not to take the place of the Judge - to act before the Judge even has the opportunity to pronounce himself/herself, then it seems legitimate to supervise the implementation of the company's duty of Vigilance, through a form of proceduralisation of Compliance. The company, as its employees or partners, would benefit from more Vigilance supervision. Insofar as all Vigilance obligations do not call the same role of the company, it is necessary to consider guiding principles of Vigilance, more or less intense depending on whether it is Negative or Positive Vigilance. 

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► Full reference: M.-A. Frison-Roche, "Ajuster par la nature des choses le Droit processuel au Droit de la Compliance" ("Adjusting by the nature of things General Procedural Law to Compliance Law"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 251-262. 

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📝read the article (in French)

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🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► The principal elements of this articles had been presented during the scientific manifestation held on September 23, 2021, at Dauphine University in Paris, coorganised by the Journal of Regulation & Compliance (JoRC) and the Institute Droit Dauphine. 

In the book this article is placed in the chapter II about the General Procedural Law in the Compliance Law.  

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► Summary of the article (done by the Journal of Regulation & Compliance): Procedural law is an invention, essentially due to professor Motulsky, going well beyond the gain that one always has in comparing types of procedures with each other. As he asserted, there is Natural Law in General Procedural Law, in that as soon as there is the Rule of Law Principle there cannot be, whatever the "procedure", even the "process" such and such way of doing things: for example, to decide, to seize the one who decides, to listen before deciding, to contest the one who has decided.

General Procedural Law therefore depends on the nature of things. However, Compliance Law organizes things in a new way. Therefore, both the simple and iron principles of General Procedural Law creep in where we do not expect them at first sight, because there is no judge, this character around whom ordinary procedures fit together. The principles of General Procedural Law are essential in companies. Even if the regulations do not breathe a word about it, it is up to the Judges, in particular the Supreme Courts, to recognize this nature of things because on this effect of nature that  General Procedural Law is built: when compliance mechanisms oblige companies to strike, General Procedural law must oblige, even in the silence of the texts, to arm those who can be hit, even stand up against devices that would set aside too much these defenses that are easily considered contrary to efficiency (I).

But because it is a question of making room for this nature of the things of which the Rule of Law Principle entrusts the custody to the Judge and the Lawyer, the General Procedural Law must also adjust itself to what the extraordinary new branch of Law Compliance Law is. Indeed, Compliance Law is extraordinary in that it expresses the political pretention to act now so that the future will not be catastrophic, by detecting and preventing the realization of systemic risks, or even that it is better, by building effective equality or real concern for others. Because it is the Monumental Goals that defines this new branch of Law, a disputed systemic issue, possibly disputed by several parties before a judge, the procedural principles used by the court must be broadened considerably: they must then include civil society and the future (II).

General Procedural Law thus naturally acquires an even more place than in the classic branches of Law since on the one hand it imposes itself outside of trials, particularly in companies and on the other before the courts it involves people who had hardly any place to speak and thinks themselves, especially the systems entering the "causes" of Compliance now debated before the Judge.

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► Full Reference: F.-X. Train, "Arbitrage et procédures parallèles exercées au titre de la compliance" ("Arbitration and parallel proceedings exercised in Compliance Procedure"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 355-368. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► The summary below describes the article that follows an intervention in the scientific manifestation Compliance et Arbitrage, co-organised by the Journal of Regulation & Compliance (JoRC) and the University Panthéon-Assas (Paris II). This conference was designed by Marie-Anne Frison-Roche and Jean-Baptiste Racine, scientific co-directors, and took place in Paris II University on March 31, 2021. 

In the book, the article will be published in the Chapter III, devoted to: Compliance et Arbitrage international.

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► Summary of the article (done by the Journal of Regulation & Compliance): Firstly, the article insists on the principle of the autonomy of the international arbitration procedure, in relation to which parallel procedures remain watertight, whether they are criminal or done under Compliance Law. In the arbitral proceedings taking place independently, the arbitrators before whom the facts also referred to in these parallel proceedings, in particular the facts of corruption, are alleged before them as facts through their unlawful nature: it is at this title that they can and must apprehend them, using the standard of proof which is the bundle of clues.

Secondly, the article highlights the limits of the autonomy of international arbitration. These may be de facto limits because in the search for evidence by arbitrators, red flags are often insufficiently consistent evidence to establish a sentence, especially since this sentence may be subject to control by the judge of its conformity to international public order, the annulment by the judge being able to be based on external elements, even after the arbitration procedure. It may then be wise for the arbitrators, who are not forced to do so, to suspend their proceedings to wait the results of the parallel proceedings initiated under Compliance Law, so that the procedures and their results could be harmonious.

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► Full Reference: Ch. Lapp, "La compliance dans l'entreprise : les statuts du process" ("Compliance in the company: the statues of processes"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p.141-150. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► The summary below describes an article following the colloquium L'entreprise instituée Juge et Procureur d'elle-même par le Droit de la Compliance (The Entreprise instituted Judge and Prosecutor of itself by Compliance Law) , co-organized by the Journal of Regulation & Compliance (JoRC) and the Faculté de Droit Lyon 3. This manifestation was designed under the scientific direction of Marie-Anne Frison-Roche and Jean-Christophe Roda and took place in Lyon on June 23, 2021. During this colloquium, the intervention was shared with Jan-Marc Coulon, who is also a contributor in the book (see the summary of the Jean-Marc Coulon's  Article).

In the book, the article will be published in Title I, devoted to:  L'entreprise instituée Juge et Procureur d'elle-même par le Droit de la Compliance (The Entreprise instituted Judge and Prosecutor of itself by Compliance Law ).

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► Summary of the article (done by the author): The Company is caught in the grip of Compliance Law, the jaws of which are those of Incitement (1) and Sanction that the Company must apply to ensure the effectiveness of its processes to which it is itself subject (2 ).

First, the Company has been delegated to fabricate reprehensible rules that it must apply to itself and to third parties with whom it has dealings. To this end, the Company sets up "processes", that is to say verification and prevention procedures, in order to show that the offenses that it is likely to commit will not happened.

These processes constitute standards of behavior to prevent and avoid that the facts constituting the infringements are not themselves carried out. They are thus one of the elements of Civil Liability Law in its preventive or restorative purposes.

Second, the sanction of non obedience of Compliance processes puts the Company in front of two pitfalls. The first  dimension place the company, with regard to its employees and its partners, in the obligation to define processes which also constitute the quasi-jurisdictional resolution of their non-compliance, the company having to reconcile the sanction it pronounces with the fundamental principles of classical Criminal Law, constitutional principles and all fundamental rights. The processes then become the procedural rule.

The second dimension is that the Company is accountable for the effectiveness of the avoidance by its processes of facts constituting infringements. By a reversal of the burden of proof, the Company is then required to prove that its processes are efficient. at least equivalent to the measures defined by laws and regulations, the French Anti-Corruption Agency (Agence Française Anticorruption - AFA), European directives and various communications on legal tools to fight breaches of probity, environmental attacks and current societal concerns. The processes then become the constitutive element, per se, of the infringement.

Thus, in its search for a balance between Prevention and Sanction to which it is itself subject, the Company will not then be tempted to favor the orthodoxy of its processes over the expectations of the Agence Française Anticorruption - AFA , regulators and judges, to the detriment of their efficiency?

In doing so, are we not moving towards an instrumental and conformist Compliance, paradoxically disempowering with regard to the Compliance Monumental Goals of Compliance?

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► Full Reference: L.-M. Augagneur, "La juridictionnalisation de la réputation par les plateformes" ("The jurisdictionalisation of reputation by platforms"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 97-113. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published.

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► Summary of the article (done by the author): The large platforms are in the position of arbiter of the reputation economy (referencing, notoriety) in which they themselves act. Although the stakes are usually low on a unit basis, the jurisdiction of reputation represents significant aggregate stakes. Platforms are thus led to detect and assess reputation manipulations (by users: SEO, fake reviews, fake followers; or by the platforms themselves as highlighted by the Google Shopping decision issued by the European Commission in 2017) that are implemented on a large scale with algorithmic tools.

The identification and treatment of manipulations is itself only possible by means of artificial intelligence tools. Google thus proceeds with an automated downgrading mechanism for sites that do not follow its guidelines, with the possibility of requesting a review through a very summary procedure entirely conducted by an algorithm. Tripadvisor, on the other hand, uses an algorithm to detect false reviews based on "fraud modeling to identify electronic patterns that cannot be detected by the human eye". It only conducts a human investigation in limited cases.

This jurisdictionality of reputation has little in common with that defined by the jurisprudence of the Court of Justice (legal origin, contradictory procedure, independence, application of the Rules of Law). It is characterized, on the one hand, by the absence of transparency of the rules and even of the existence of rules stated in predicative form and applied by deductive reasoning. It is replaced by an inductive probabilistic model by the identification of abnormal behaviors in relation to centroids. This approach of course raises the issue of statistical bias. More fundamentally, it reflects a transition from Rule of Law, not so much to "Code is Law" (Laurence Lessig), but to "Data is Law", that is, to a governance of numbers (rather than "by" numbers). It also comes back to a form of collective jurisdictionality, since the sanction comes from a computational apprehension of the phenomena of the multitude and not from an individual appreciation. Finally, it appears particularly consubstantial with compliance, since it is based on a teleological approach (the search for a finality rather than the application of principles).

On the other hand, this jurisdictionality is characterized by man-machine cooperation, whether in the decision-making process (which poses the problem of automaticity bias) or in the contradictory procedure (which poses, in particular, the problems of discussion with the machine and the explicability of the machine response).

Until now, the supervision of these processes has been based essentially on the mechanisms of transparency, a limited adversarial requirement and the accessibility of appeal channels. The French Law Loi pour une République Numérique ("Law for a Digital Republic"), the European Legislation Platform-to-Business Regulation and the Omnibus Directive, have thus set requirements on the ranking criteria on platforms. The Omnibus Directive also requires that professionals guarantee that reviews come from consumers through reasonable and proportionate measures. As for the European Digital Services Act, it provides for transparency on content moderation rules, procedures and algorithms. But this transparency is often a sham. In the same way and for the moment the requirements of sufficient human intervention and adversarial processes appear very limited in the draft text.

The most efficient forms of this jurisdictionality ultimately emerge from the role played by third parties in a form of participatory dispute resolution. Thus, for example, FakeSpot detects false Tripadvisor reviews, Sistrix establishes a ranking index that helped establish the manipulation of Google's algorithm in the Google Shopping case by detecting artifacts based on algorithm changes. Moreover, the draft Digital Services Act envisages recognizing a specific status for trusted flaggers who identify illegal content on platforms.

This singular jurisdictional configuration (judge and party platform, massive situations, algorithmic systems for handling manipulations) thus leads us to reconsider the grammar of the jurisdictional process and its characteristics. If Law is a language (Alain Sériaux), it offers a new grammatical form that would be that of the middle way (mesotès) described by Benevéniste. Between the active and the passive way, there is a way in which the subject carries out an action in which he includes himself. Now, it is the very nature of this jurisdictionality of compliance to make laws by including oneself in them (nomos tithestai). In this respect, the irruption of artificial intelligence in this jurisdictional treatment undoubtedly bears witness to the renewal of the language of Law.

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► Full Reference: M.-A. Frison-Roche, "Le juge, l'obligation de compliance et l'entreprise. Le système probatoire de la Compliance" ("The judge, the compliance obligation, and the company. The Compliance probationary system"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p 409-442.

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📝read the article (in French)

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🚧read the bilingual Working Paper which is the basis of this article, with additional developments, technical references and hyperlinks 

____

📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

____

► Summary of the article (done by the Journal of Regulation & Compliance): the article aims to identify the link that must be established between the company in its relationship with the compliance obligations it assumes and the judges to whom it is accountable in this respect: this link is established by evidence. The evidentiary system of proof has yet to be constructed, and it is the purpose of this long study to lay the groundwork. 

To this end, the article begins with a description of what is designated here as the "probatory square" in a "probatory system" that is superimposed on the system of rules of substantive legal system. This is all the more important because Compliance seems to be in frontal collision in its very principles with the general principles of the evidentiary system, in particular because it seems that the company would have to prove the existence of the Law or that it would have to bear in a definitive way the burden of proving the absence of violation, which seems to be contrary not only to the presumption of innocence but also to the principle of the freedom of action and of undertaking. In order to re-articulate Compliance Law, the obligations of compliance which legitimately weigh on the company, it is necessary to return to the probatory system specific to Compliance, so that it remains within the Rule of Law. This presupposes the adoption of a substantial definition of Compliance, which is not only compliance with the rules, which is only a minimal dimension, but implies that Compliance Law should be defined by the Monumental Goals on which the public authorities and the companies are in substantial alliance.

The evidentiary system of principle makes play between its four summits that are the burden of proof, the objects of proof this evidentiary square of principle, between the burden of proof, the means of proof and their admissibility. Compliance Law does not fall outside this evidential square, thus marking its full membership of the Rule of Law

In order to lay the foundations of the evidential system specific to Compliance Law, the first part of the article identifies the objects of proof which are specific to it, by distinguishing between the structural devices, on the one hand, and the expected behaviours, on the other. The first involves proving that the structures required to achieve the Monumental Goals of Compliance have actually been put in place. The object of proof is then the effectiveness of this implementation, which presents the effectiveness of the system. As far as behavioral obligations are concerned, the object of proof is the efforts made by the company to obtain them, the principle of proportionality governing the establishment of this proof, while the systemic efficiency of the whole reinforces the evidential system. However, the wisdom of evidence lies in the fact that, even though the principle remains that of freedom of evidence, the company must establish the effectiveness, efficiency, and effectiveness of the whole, independently of the burden of proof.

The second part of the article concerns those who bear the burden of proof in Compliance Law. The latter places the burden of proof on the company in principle, in view of its legal obligations. This burden comes from the legal origin of the obligations, which blocks the "round of the burden of proof". But in the interference of the different vertices of the evidentiary square, the question becomes more delicate when it comes to determining the contours of the compliance obligations that the company must perform. Moreover, the burden of proof may itself be the subject of proof, just as the company's performance of its legal obligations may also be the subject of contracts, which brings us back to the evidentiary system ordinarily applicable to contractual obligations. The situation is different when it comes to a "compliance contract" or when it comes to one or more compliance stipulations, concepts that are still not very well developed in Contract Law. 

Furthermore, as all branches of Law belong to a legal system governed by the Rule of Law, other branches of law interfere and modify the methods and solutions of proof. This is the case when the fact, which is the object of proof, can give rise to a sanction, the Law of repression imposing its own solutions in the matter of the burden of proof. 

In the third part of the article, the relevant means of proof in Compliance Law are examined, used in that Compliance Law is above all a branch of Law whose object is on the one hand information and on the other hand the Future. Open questions remain, such as whether companies could be forced by the Judge to build technologies to invent new means of proof. To show that they are indeed achieving the Monumental Goals they are charged with. 

In the fourth part, the vital character of the pre-constitution of evidence is shown, which is the reflection of the Ex-Ante nature of Compliance Law: evidence must be pre-constituted to avoid the very prospect of having to use it, by finding all the means to establish the effectiveness, efficiency and even the effectiveness of the various Compliance Tools. 

If companies do all this methodically, the Compliance evidence system will be established, in harmony with the general evidence system, Compliance Law and the Rule of Law.

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► Full Reference: A. Linden, "Motivation et publicité des décisions de la formation restreinte de la Commission nationale de l’informatique et des libertés (CNIL) dans une perspective de compliance" ("Motivation and publicity of the decisions of the restricted committee of the French Personal Data Protection Commission (Commission nationale de l'informatique et des libertés-CNIL) in a compliance perspective"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 235-239. 

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done by the Journal of Regulation and Compliance): In the event of a breach of the personal data protection rules, the restricted formation of the French personal data protection Commission (CNIL) pronounces fines, injunctions of "compliance" or calls to order. It can order the publication of these measures, which can be contested before the French High Administrative supreme court (Conseil d'État).

It is essential that these decisions be justified, not only in order to respect this principle of law but also concretely to obtain the public concerned, being very heterogeneous, understand them, the educational role of the CNIL also being applicable.

The principle of publicity is handled with nuance, the data controllers often requesting a closed door and, in fact, very few public attending the hearing. The publicity of decisions is in itself a sanction. The publication may moreover not be total or may only have a time, anonymization often allowing the balance between necessary pedagogy and preservation of interests, the CNIL taking great attention to the very modalities of publication, even if it cannot control the circulation and the media use which is then made of it.

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► Full Reference: A. Bavitot, "Le façonnage de l'entreprise par les accords de justice pénale négociée" ("Shaping the company through negotiated Criminal Justice Agreements"), in M.-A. Frison-Roche (ed.), La juridictionnalisation de la Compliance, coll. "Régulations & Compliance", Journal of Regulation & Compliance (JoRC) and Dalloz, 2023, p. 187-198.  

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📕read a general presentation of the book, La juridictionnalisation de la Compliance, in which this article is published

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► Summary of the article (done by the author): Negotiated justice is "the situation in which the criminal conflict is the object of a trade in the etymological sense of the term negotio, i.e. a debate between the parties to reach an agreement".

Thus, the French legislator has succumbed to globalized mimicry by creating the Convention judiciaire d'intérêt public (Public Interest Judicial Agreement), first in matters of probity and then in environmental matters. What is the nature of this deal of justice? Validated by a judge's order, it does not entail any declaration of guilt, has neither the nature nor the effects of a judgment of conviction and is not registered in the judicial record. Possible at the investigation stage as well as at the pre-trial stage, the Public Interest Judicial Agreement is original in that it makes it possible to avoid either the prosecutor's proceedings or the judge's wrath.

A detailed study of the agreements signed shows that in order to negotiate in the best possible way, the company can and must shape itself. The company will shape the facts of its agreement, shape its charge and, finally, shape its sentence. The article offers a concrete analysis of these three dimensions of corporate shaping to better approach understanding the legal nature of negotiated criminal justice agreements.

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